Background

Mrs Higgs worked as a pastoral administrator and work experience manager at Farmor's secondary school.  After the school received a complaint concerning a Facebook post Mrs Higgs had made criticising the nature of relationships education in schools, she was suspended pending a disciplinary investigation and subsequently dismissed for gross misconduct.  She brought a claim alleging the dismissal was direct discrimination and/or harassment relating to her protected beliefs.

The ET concluded that her views did constitute a protected belief, but the measures taken by the school were due to its concern that someone reading the posts might conclude that she held homophobic and transphobic views (which she denied) and that the reason for its actions was therefore not because of her belief but because of how her views would be perceived.  Mrs Higgs appealed.

The EAT upheld the appeal concluding that the ET had not followed the correct approach.  It was not enough to find that the school had been motivated by a concern that Mrs Higgs could be perceived to hold "wholly unacceptable views".  The ET had failed to address the question of whether the school's actions were because of or related to the manifestation of her beliefs.  As the ET had erred in its approach to the determination of the "reason why" question, the EAT remitted the case for a re-hearing on that issue. Mrs Higgs appealed to the Court of Appeal.

Court of Appeal decision

The Court of Appeal held that the dismissal was discriminatory.  It did not believe that dismissal was a proportionate sanction for Mrs Higgs' conduct.  While it may have been unwise to re-post material expressed in "florid and provocative" language with which she did not agree and in circumstances where people were liable to realise her connection with the school, that did not justify her dismissal, particularly where she was a long-serving employee against whose actual work there was no complaint of any kind. 

Such a dismissal would only be lawful if it was objectively justified, but in this case even on the assumption that the school was entitled to take objection to the language of the posts, it was not grossly offensive and Mrs Higgs made clear that she did not agree with the language used in the messages she had re-posted and there was no evidence the reputation of the school had been damaged nor did the school or the tribunal believe that Mrs Higgs would let her views influence her work.

The Court of Appeal cautiously endorsed the guidance set out by the EAT to follow in cases involving the exercise of rights to freedom of religion or belief and to freedom of expression (see our article here) but emphasised that each case will be different, not all the considerations will be relevant in each case and there should not be a one-size-fits-all approach. 

Implications for employers

This is a very difficult issue for employers. Conflicts around the globe such as in the Middle East and the executive orders of the new incumbent in the White House mean that employees are increasingly looking to express their views/raise concerns on social media. Those expressions can often be in challenging, and sometimes inflammatory, terms and often linked to religion or other beliefs bringing protected characteristics into play, as in this case.

Employers faced with sensitive and difficult questions over religion and belief in the workplace will need to carefully balance the individual's belief and the way in which they may express that belief with the rights, freedoms and reputation of others.  Such cases are always going to be very fact-specific. An employer will need to consider whether its actions can be objectively justified and ensure any action taken is a proportionate and balanced response.  There will be many instances where it will be reasonable to dismiss, but not in every instance, where a post causes offence.